By Bruce E Buchanan, Sebelist Buchanan Law

In Heath v. Tringapps, Inc., 15 OCAHO no. 1410 (Jan. 11, 2022), the Office of the Chief Administrative Hearing Officer (OCAHO) decided Heath had sufficiently pled a prima facie case when he alleged Tringapps refused to hire him because it favored H-1B visa holders, similar to the Facebook decision in 2021.

In the Complaint, Heath alleged he was discriminated because of his citizenship status in that Tringapps refused to hire him after he applied to work and Tringapps favored H-1B visa holders as shown in its job advertisement seeking a “H1B Transfer.”

Tringapps filed a Motion to Dismiss arguing Heath “failed to state a claim upon which relief can be granted” because Heath “left at least two questions [5 and 9] on the OCAHO complaint form blank.” See Mot. Dismiss 3 (citing Winkler v. W. Capital Fin. Srvs., 7 OCAHO no. 928, 65, 73–75 (1997), and United States v. Patrol & Guard Enters., Inc., 8 OCAHO no. 1040, 621-22 (2000)). OCAHO caselaw states a Complainant is not required to plead a prima facie case. Instead, OCAHO held its “rules merely require the complaint to contain ‘[t]he alleged violations of law, with a clear and concise statement of facts for each violation alleged to have occurred.’” United States v. Split Rail Fence Co., Inc., 10 OCAHO no. 1181, 5 (2013) (quoting 28 C.F.R. § 68.7(b)(3)).

Based upon the motion and caselaw, OCAHO held:
While leaving Section 7, Question 5 blank, Complainant attaches the job advertisement at issue, such that it can be incorporated by reference. (Citations removed). The job advertisement appears to indicate that Tringapps was looking for workers on November 14, 2020. The job announcement provides a list of qualifications as well as a job announcement number, includes a statement, “Looking for Better Career Opportunities under H1B Transfer” and then solicits applications.

Further, an answer to Section 7, Question 9 is not needed to allege a specific violation of law at 8 U.S.C. § 1324b(a)(1) here.

Complainant sufficiently alleges that Tringapps was “hiring,” or “recruiting for a fee” within the meaning of § 1324b…. Reading the complaint as a whole, Tringapps has been put on notice of the nature of Complainant’s claims….

Complainant asserts that Tringapps manipulated its hiring practices to disqualify him because of his citizenship status, preferring those with H-1B visa status. See United States v. Facebook, Inc., 14 OCAHO no. 1386b, 5, 9 (2021).

Accordingly, Complainant has sufficiently alleged a discrimination claim in violation of 8 U.S.C. § 1324b(a)(1). Tringapps has not moved the Court to take any action for the document abuse claim arising under 8 U.S.C. § 1324b(a)(6). Thus, Tringapps’ Motion to Dismiss is denied.

If you want to know more information on I-9 compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.